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to clarify family leave law

New regulations issued
to clarify family leave law

Ours is a world filled with compromise. Case in point: In early January, the U.S. Department of Labor’s Wage and Hour Division issued the final version of the Family and Medical Leave Act regulations with an effective date of Feb. 6. In response, the Society for Human Resource Management and members of the House Economic and Educational Opportunities Committee requested postponement of the effective date to allow employers time to revise their policies. A compromise was reached, and the new FMLA regulations now will take effect April 6, giving employers two weeks to initiate policies. The new regulations were issued to clarify employee and employer confusion over the law, which was passed in February 1993. According to a survey conducted by the Bureau of National Affairs Inc. 20 months later, nearly half of all workers knew little or nothing of the law. The survey also found that a majority of employers did not understand their responsibilities.
Since enactment of the law, nearly 1,000 complaints have been investigated by the Department of Labor. The department has found that once employers were educated, compliance followed. Here is a summary of the most significant changes or clarifications in the new regulations:
Serious health condition–This definition, which must be met to trigger the right to benefits under the FMLA, has been clarified, particularly as it relates to what constitutes “continuing treatment” by a health care provider.
For example, “treatment” has been defined to include examinations to determine mine the existence of a serious health condition; a course of prescription medication, such as antibiotics; or a therapy requiring special equipment, such as oxygen. The definition excludes routine physicals, eye or dental examinations and conditions treated with over-the-counter medications. Conditions not ordinarily covered include the common cold, the flu, earaches, upset stomach, minor ulcers, headaches (other than migraines) and routine dental problems.
A lawsuit filed last year was the first to test the “serious health condition” definition. In December 1994, a federal judge in Pennsylvania ruled against an employee who was dismissed from Provident Mutual Life Insurance Co. for taking unexcused time off as a result of her son’s ear infection. The employee challenged the discharge, saying she was entitled to reinstatement under the FMLA. Although the law allows employees to take up to 12 weeks off within a 12-month period to care for children with serious health conditions, the judge in that case ruled that the child’s ear infection was not an FMLA-defined serious health condition.
The definition of serious health condition has also been revised to specifically include certain conditions in which an absence from work is three consecutive calendar days or less. These conditions include pregnancy or prenatal care requiring no health care provider visit for each absence, such as morning sickness; “chronic serious health conditions” that may require visits to a health care provider and may cause periods of incapacity, such as asthma, diabetes and epilepsy; periods of incapacity for conditions that may not respond to treatment, such as severe stroke and terminal illness; and multiple treatments for restorative surgery or for a condition that would likely result in incapacity of more than three days if not treated, such as chemotherapy or radiation treatment, physical therapy and kidney dialysis.
Health care provider–The definition has been expanded to include clinical social workers and any health care provider that the employer’s group health plan recognizes to certify claims.
FMLA leave–Employers must designate a leave of absence in writing as FMLA leave and notify the employee as soon as the employer learns of the reason for the leave. Typically, this designation should take place before the leave begins. The employer can make this designation after the employee returns to work under two conditions: if the leave was preliminarily designated FMLA leave, but the employer was awaiting verification, or, if the employer does not know the reason for the leave, but makes the designation within two business days after the employee returns to work. Employers or employees may not retroactively claim that paid or unpaid leave was for FMLA purposes.
Disability benefits/workers’ compensation–Absences that qualify for and are paid under a disability benefit plan or workers’ compensation can be simultaneously counted as FMLA leave.
Light duty–An employee can voluntarily accept light-duty work instead of continuing FMLA leave, but the employer cannot require light duty. If the employee refuses a light-duty job that he or she can perform, the employer’s obligation to pay workers’ compensation or disability benefits ends, but the employee is still entitled to any remaining unpaid FMLA leave. If the employee chooses the light-duty work, he or she retains the right to return to his or her original or equivalent job for the full 12-week period, including time on FMLA leave and light-duty work.
Medical certification–The employer’s health care provider may contact the employee’s health care provider to clarify information in the medical certification or to verify that the provider completed the certification, but may not request additional information.
Notice of FMLA requirements–Employers typically are required to give written notice of FMLA leave only once during a six-month period when a leave is first taken. Individual notice must be given for each instance when a medical certification or “fitness for duty” report is required, unless the requirement is clearly specified in the six-month notice and mentioned in an employer handbook.
COBRA/benefits issues–The Labor Department noted that the Internal Revenue Service has authority over certain issues relating to the interaction with FMLA and tax implications for benefits plans such as cafeteria and flexible spending, and COBRA requirements for continuing benefits. An IRS bulletin notes that COBRA is triggered on the last day of FMLA leave rather than the first.
Perhaps these new regulations will help solve the FMLA “educational problem” prevalent over the past two years, and clarify employer and employee responsibilities.
(Justin P. Doyle is a partner with Nixon, Hargrave, Devans & Doyle. His colleague, Cheryl Jones-Richter, assisted with this article.)

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